Back 

Medical Professionals Apologies 2011 Legislation

Medical Professionals Apologies 2011 Legislation

Last updated: August 15, 2012

NCSL Staff Contact: Heather Morton, Denver

Following discovery that something has gone wrong with a patient, many medical professionals may wish to express their condolences or apologies to patients or their families. However, in some states, such expressions may be admissible before courts as evidence of wrongdoing or guilt in medical liability/malpractice cases. Many doctors are advised, if not ordered, to refrain from making such statements to patients and families, should the matter end up in court.

In an effort to reduce medical liability/malpractice lawsuits and litigation expenses, state legislators and policymakers are changing the laws to exclude expressions of sympathy, condolences or apologies from being used against medical professionals in court. Proponents of these so-called "I'm sorry" laws believe that allowing medical professionals to make these statements can reduce medical liability/malpractice litigation.

In 2011, 13 states have introduced legislation to prevent medical professional apologies or sympathetic gestures from being used in court to date. Michigan enacted legislation specifying that a statement, writing, or action expressing sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual, that was made to that individual or to his or her family, would be inadmissible as evidence of an admission of liability in a medical malpractice action. Oregon enacted legislation that specifies that a health care institution, health care facility or other entity that employs a licensee of the Oregon Medical Board is not admitting liability when the institution, facility or other entity expresses regret or apologizes. Utah amended its Utah Rule of Evidence, Rule 409, regarding expressions of apology by health care professionals and employees.

Related NCSL Webpages:

State Laws on Medical Professional Apologies
2010 Legislation 2009 Legislation

 

AK | IL | KS | MD | MA | MI | NH | OR | PA | RI | TXUT | WI
 
STATE
BILL SUMMARY
Alabama
none
Alaska

S.B. 14
Provides for the protection and reasonable accommodation of a health care provider's expression of conscience pertaining to a health care service; and provides for immunity, an exception, and prohibition of discrimination for an expression of conscience by a health care provider.

Arizona
none
Arkansas
none
California
none
Colorado
none
Connecticut
none
Delaware
none
District of Columbia
none
Florida
none
Georgia
none
Guam
none
Hawaii
none
Idaho
none
Illinois

H.B. 2887
Amends the Illinois Insurance Code, the Medical Practice Act of 1987, the Code of Civil Procedure, and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment, including revisory changes. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; to provide for annual indexing of those rates; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision.

S.B. 1887
Amends the Illinois Insurance Code, the Medical Practice Act of 1987, the Code of Civil Procedure, and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment, including revisory changes with apologies by medical professionals. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; to provide for annual indexing of those rates; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision.

S.B. 1888
Re-enacts and repeals various statutory provisions to eliminate changes that were made by Public Act 89-7, which was held to be void in its entirety by the Illinois Supreme Court in . Repeals a provision of the Code of Civil Procedure concerning standards for economic and non-economic damages that was added by Public Act 94-677 and was specifically declared unconstitutional by the Illinois Supreme Court in and the Sorry Works! Pilot Program Act, which was declared unconstitutional because of the inseverability clause contained in Public Act 94-677.

Indiana
none
Iowa
none
Kansas

H.B. 2069
Passed House 2/25/11
Enacts the Kansas adverse medical outcome transparency act; concerns evidence in civil actions; expression of apology, sympathy, compassion or benevolent acts by health care providers or health care administrators not admissible as evidence of an admission of liability or as evidence of an admission against interest.

H.B. 2123
Enacts the Kansas adverse medical outcome transparency act; concerns evidence in civil actions; expression of sympathy, compassion or benevolent acts by health care providers not admissible as evidence of an admission of liability or as evidence of an admission against interest.

S.B. 142
Passed Senate 3/23/11
Concerns evidence in civil actions; expressions of apology, sympathy, commiseration or condolence not admissible as evidence of an admission of liability or as evidence of an admission against interest.

Kentucky
none
Louisiana
none
Maine
none
Maryland

H.B. 1192
Alters a specified evidentiary rule concerning an expression of regret or apology in specified civil actions and proceedings against health care providers.

Massachusetts

H.B. 418
Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.

H.B. 421
Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.

H.B. 494
Relates to the admissibility of evidence in judicial or administrative proceeding pertaining to adverse health care management.

H.B. 1519
Relates to medical peer review and patient safety. Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, writings, gestures, activities, or conduct expressing apology, regret, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care facility to the patient, family of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or a statement against interest.

H.B. 1849
Improves the quality of health care and controlling costs by reforming health systems and payments.

S.B. 766
Improves patients' access to timely compensation.

S.B. 808
Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.

S.B. 834
Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.

Michigan

S.B. 53
Signed by governor 4/19/11, Public Act 21
The bill amends the Revised Judicature Act to specify that a statement, writing, or action expressing sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual, that was made to that individual or to his or her family, would be inadmissible as evidence of an admission of liability in a medical malpractice action. The bill does not apply to a statement of fault, negligence, or culpable conduct that was part of or made in addition to a statement, writing, or action described above. "Family" is defined as spouse, parent, grandparent, stepmother, stepfather, child, adopted child, grandchild, brother, sister, half brother, half sister, father-in-law, or mother-in-law.

Minnesota
none
Mississippi
none
Missouri
none
Montana
none
Nebraska
none
Nevada
none
New Hampshire

S.B. 17
This bill makes certain statements by medical care providers to an alleged victim and the alleged victim’s relatives and representatives inadmissible as evidence in any medical injury action.

New Jersey
none
New Mexico
none
New York
none
North Carolina
none
North Dakota
none
Ohio
none
Oklahoma
none
Oregon

S.B. 95
Signed by governor 5/16/11, Chapter 30
Requires insurer to defend claim of malpractice if claim is based on disclosure of adverse event by health practitioner to patient or patient's family. Applies to insurance policies issued or renewed on or after effective date of Act. Authorizes Oregon Patient Safety Commission to include any serious adverse event on list of reportable events. Requires commission to collaborate with providers of ambulatory health care for purposes related to patient safety. Specifies that health care institution, health care facility or other entity that employs licensee of Oregon Medical Board is not admitting liability when institution, facility or other entity expresses regret or apologizes.

Pennsylvania

H.B. 495
Passed House 3/1/11
Amends Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in rules of evidence, providing for benevolent gesture or admission by health care provider or assisted living residence or personal care home.

S.B. 565
Amends the act of March 20, 2002 (P.L.154, No.13), known as the Medical Care Availability and Reduction of Error (Mcare) Act, in medical professional liability, providing for benevolent gesture or admission by health care provider or assisted living residence.

Puerto Rico
none
Rhode Island

H.B. 5255
This act provides that expressions of sympathy, statements by a health care provider to a patient or to the patient’s family regarding the outcome of such patient’s medical care and treatment, including reports of medical/health care errors or unanticipated outcomes as required by or in accordance with JCAHO’s standards, and any offers by a health care provider to undertake corrective action to assist the patient shall be inadmissible as evidence or an admission of liability in any claim or action against the provider.

S.B. 348
This act provides that expressions of sympathy, statements by a health care provider to a patient or to the patient's family regarding the outcome of such patient's medical care and treatment, including reports of medical/health care errors or unanticipated outcomes as required by or in accordance with JCAHO's standards, and any offers by a health care provider to undertake corrective action to assist the patient would be inadmissible as evidence or an admission of liability in any claim, action or proceeding against the provider.

South Carolina
none
South Dakota
none
Tennessee
none
Texas

H.B. 2489
Relates to the discoverability and admissibility of communications of sympathy in certain civil or administrative actions against a health care provider or physician.

Utah

H.J.R. 38
Adopted 3/8/11
This joint resolution amends Utah Rule of Evidence, Rule 409 regarding expressions of apology by health care professionals and employees.

Vermont
none
Virginia
none
Washington
none
West Virginia
none
Wisconsin

A.B. 147
Passed Assembly 11/1/11
This bill provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or patient's relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

S.B. 103
This bill provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or patient's relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Wyoming
none

Powered by State Net

Share this: 
NCSL Summit 2014
We are the nation's most respected bipartisan organization providing states support, ideas, connections and a strong voice on Capitol Hill.

NCSL Member Toolbox

Denver

7700 East First Place
Denver, CO 80230
Tel: 303-364-7700 | Fax: 303-364-7800

Washington

444 North Capitol Street, N.W., Suite 515
Washington, D.C. 20001
Tel: 202-624-5400 | Fax: 202-737-1069

Copyright 2014 by National Conference of State Legislatures